Date of Filing: 14.07.2008<br /> Date of Order:14.10.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 14TH DAY OF OCTOBER 2008<br /> PRESENT<br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1573 OF 2008<br /> <br /> P. Subramani<br /> S/o. Late Sri Parashuram<br /> No. 36, Sajjan Rao Road<br /> V.V. Puram, Bangalore 560 004 Complainant<br /> <br /> V/S<br /> <br /> ICICI Lombard General Insurance Co. Ltd.<br /> Represented by its Branch Manager<br /> No. 228/15, Rajalakshmi Arcade<br /> 22nd Cross, 9th Main, III Block<br /> Jayanagar, Bangalore 560 011 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act. <br /> The facts of the case are that the complainant is the owner of Toyota Car bearing Registration No. KA 01 B 9063 took a policy with the opposite party by paying a sum of Rs. 30,696/- comprising of Rs. 22,254/- for own damage and third party liability a sum of Rs. 5,565/- for the period between 30.06.2007 to 29.06.2008 midnight. The complainant submits that a certificate cum policy No. 300A/ 52050179/00/000 dated 04.07.2007 was issued by the opposite party. The IDV of the vehicle was fixed at Rs. 6,69,684/-. It is submitted that the said vehicle met with an accident on 20.02.2008 at Ambur, Vellore M.C. Road about 7 a.m. The accident was due to the negligent driving of the lorry bearing Regn. No. KA-09-B-9090 which came from behind and dashed against the vehicle of the complainant. The vehicle of the complainant was completely damaged. The vehicle was left with M/s. Ravindu Motors (P) Ltd., Bangalore for effecting repairs on 21.02.2008. The opposite party was informed about the accident and lodged a claim No. MOT 0071-7347 on 20.02.2008 itself. The authorized dealer estimated the repair work by its service estimate dated 29.02.2008 which was estimated at Rs. 6,71,201/-, taking into account that the body of the vehicle was completely damaged and needs to be completely replaced / repaired by observing “full body damage”. However, the opposite party insisted that another estimate on Body Panel wise method be given. The authorized dealer gave another service estimate dated 13.03.2008 at Rs. 3,71,516/- which was only for repairing the body parts with the remarks “Body parts - subject to dismantling – supplementary estimate will be given later.” The complainant states that the service estimate dated 29.02.2008 included the full particulars / details of the proposed repair or replacement work. However, in the service estimate dated 13.03.2008 dealer gave an estimate for repair work which did not include the chassis work, painting, mechanical work, etc. It is submitted by the complainant that since the vehicle was completely damaged most of the parts required to be replaced, but cannot be repaired. The complainant issued legal notice on 17.04.2008 to the opposite party. It was clearly pointed out in the said notice that the opposite party either grants approval for the claim being processed in terms of the service estimate dated 29.02.2008 or pay the IDV of Rs. 6,69,684/- and also other charges. The opposite party granted approval of the service estimate dated 13.03.2008 and not the service estimate dated 29.02.2008. The inaction / refusal of the opposite party in not according approval of the service estimate dated 29.02.2008 is a clear case of deficiency of service. The complainant on an earlier occasion filed a complaint bearing No.1119/2008 seeking certain reliefs before the III Addl., District Consumer Forum and the same was dismissed as there was no cause of action at that time. Complainant prayed to direct the opposite party to accord approval for repair of the above said vehicle in terms of the service estimate dated 29/02/2008 or direct to pay IDV of Rs. 6,69,684/- and damages.<br /> 2. Notice was issued to opposite party. Opposite party was put in appearance through advocate and defence version filed stating that the complaint is not maintainable either in law or on facts. It is admitted that the Toyota Innova car bearing No. KA-01-MB 9063 was insured which is in accordance with the provisions of the Motor Vehicle Act and rules and the liability of the opposite party is limited to the terms and conditions of the policy of insurance issued. It is submitted that having received the information from the complainant regarding the accident the opposite party appointed a surveyor for inspection of the damaged vehicle and also requested the complainant to produce estimation report along with all other vehicle documents. It is submitted that the Surveyor and Loss Assessor has assessed the loss after inspection of the damaged vehicle and also on detailed discussion with the complainant and the authorized repairer accordingly submitted the report to the company on 18.04.2008. Complainant is not ready to repair the damaged vehicle but insisting upon to settle the claim on total loss basis. It is submitted by the opposite party that as per the policy terms and condition, if the repair cost is less than 75% of the sum assured, the claim cannot be settled on total loss basis and further authorized repairer has admitted that it can be repairable and also he is ready to carry out the repair of the damaged vehicle, but they are seeking permission from the owner of the vehicle. It is submitted that now also, the opposite party is ready to settle the claim on repair basis and hence, there is no deficiency on the part the opposite party. All other allegations in the complaint are denied by the opposite party.<br /> 3. Both the parties have filed affidavits. Arguments are heard.<br /> 4. The point for consideration is:<br /> <br /> Whether the opposite party can be directed to pay the IDV of Rs.6,69,684/- to the complainant?<br /> <br /> REASONS<br /> <br /> 5. It is an admitted case of the parties that the complainant is the registered owner of TOYOTA Car bearing registration No.KA-01 B- 9063. He has taken Motor Insurance Policy from the opposite party for own damage and also for third party liability. The period of policy from 30/06/2007 to 29/06/2008. The complainant has paid premium of Rs.30,696/- for the said policy. The vehicle met with an accident on 20/02/2008, FIR was lodged against the driver of the offending vehicle. As per the case of the complainant the vehicle was completely damaged. Opposite party was informed about the accident and the claim was lodged. The authorised dealer Ravindu TOYOTA estimated the loss at Rs.6,71,201/-. The complainant has produced service estimate dated 29/02/2008 of Ravindu TOYOTA. In the remark it is stated that full body was damaged. The complainant has produced another estimate report dated 13/03/2008 it is for Rs.3,71,516/-. The opposite party admitted in the defence version that the Surveyor and Loss Assessor has assessed the loss after inspection of the damaged vehicle and submitted the report to the company. The opposite party submitted that work order has been issued to pay the vehicle as per the revised estimation but the complainant is not ready to repair the damaged vehicle and he is insisting to settle the claim on total loss basis. It is the defence of the opposite party that as per the policy terms and conditions if the repair cost is less than 75% of the sum assured the claim cannot be settled on total loss basis. Therefore, it is submitted that the complainant cannot find fault with the opposite party. It is submitted by the opposite party that even now opposite party is ready to settle the claim on repair basis. Therefore, there is no deficiency in service on the part of the opposite party. The service estimate produced by the complainant dated 13/03/2008 has been relied on by the opposite party and opposite party is ready to settle the claim as per the estimate dated 13/03/2008. As per this estimate the grand total of the repair cost is shown as Rs.3,71,516/-. In the remark column the Surveyor stated that body parts subject to dismantling supplementary estimate will be given. Therefore, as per the remark it is clear that Rs.3,71,516/- is not the full and complete estimate of the repair cost of the vehicle. Therefore, the opposite party cannot rely on the service estimate dated 13/03/2008 for settling the claim. The complainant has produced estimate dated 29/02/2008. As per this estimate the grand total of the cost of the repairs and spare parts and labour charges has been worked out to be Rs. 6,71,201/- and in the remark column it is stated as full body damaged. The complainant again got loss assessed through K. Kumar Surveyor and Automobile Engineer. The assessment report has been produced. The Surveyor has submitted that assessment was arrived on the basis of damage noticed during the inspection of vehicle on 9th September-2008 at M/s Ravindu Toyota Pvt. Ltd.,. As per the report of K. Kumar the estimated damage is shown as Rs.6,71,201/- and he has assessed the loss for Rs.4,24,892/- and this assessment is exclusive of tax on parts and labour. The Surveyor and Automobile Engineer submitted in his report that assessment is done in superficial condition and without getting the vehicle dismantled and he has submitted his report that additional requirement of replacement cannot be ruled out. As per the defence version the opposite party submitted that as per the policy conditions if the repair cost is less than 75% of the sum assured the claim cannot be settled on total loss basis. In this case even the latest assessment made by K. Kumar is taken into consideration he has assessed the loss at Rs.4,24,892/-. 75% of the sum assured will be around Rs.5,02,500/-. The assessor submitted his report that additional requirement of replacement cannot be ruled out and assessment has been done by observing in superficial condition. As per his report additional cost also is not ruled out after dismantling the vehicle. Therefore, if that is taken into consideration the cost of repairs and spare parts would work out to more than 75% of the IDV. Therefore, it would be fair, proper and just to direct the opposite party to pay the full IDV to the complainant. The learned advocate for the complainant submitted that the complainant is ready to surrender R.C Book and he is ready to execute Form No.29 and 30 in favour of the opposite party. The opposite party can receive all the documents and also the vehicle and submitted that the opposite party may be directed to pay the sum assured. Looking into the facts and circumstances of the case, documents, damage caused to the vehicle, reports of the Surveyor, the opposite party should treat and settle the claim on total loss basis. I feel the ends of justice will be met in this case by directing the opposite party to pay Rs.6,69,684/- the IDV to the complainant. The complainant has prayed Rs.2,500/- per day towards idling charges from 10/03/2008, Rs.300/- per day towards parking charges and complainant has also prayed for grant of Rs.2,00,000/- as damages. We are of the opinion that there is absolutely no case or any proof or evidence to show that complainant is entitled to Rs.300/- per day towards parking charges and Rs.2,500/- towards idling charges. There is no such law or rules entitling the complainant to claim idling charges and parking charges from the opposite party company. On the facts and circumstances of the case the question of grant of damages also does not arise. The interest of justice will be met in ordering the opposite party to pay the sum assured to the complainant by settling the claim on total loss basis. In the result I proceed to pass the following:<br /> ORDER<br /> <br /> 6. The complaint is partly allowed. The opposite party is directed to pay Rs.6,69,684/- to the complainant(IDV) within 30 days from the date of this order. <br /> 7. In the event of non-compliance of the order by the opposite party within 30 days the said amount carries interest at 12% p.a from the date of this order till payment/realisation. <br /> 8. The complainant is also entitled for Rs. 3,000/- towards costs of the present proceedings from the opposite party. <br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 14TH DAY OF OCTOBER 2008. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr<br />